Judgments

INDUSTRIAL LAW – alleged contraventions of ss 351 and 340 of the Fair Work Act 2009 (Cth) – where the applicant has failed to establish that steps taken by the respondent to accommodate her family and carer’s responsibilities amount to adverse action – where the applicant made complaints and inquiries in relation to her employment – where the respondent took adverse action against the applicant by removing her from a scheduled shift and dismissing her from her employment – where the respondent has failed to discharge the reverse onus in s 361 of the Fair Work Act – contravention of s 340(1) of the Fair Work Act established.

INDUSTRIAL LAW – where employee of deregistered company alleges that sole director of the company was involved in the company’s failure to make payments in accordance with an award – whether award covered the employee’s employment – whether company failed to make payments it was required to make under the award – whether sole director of the company was a person involved in company’s failure to pay amounts it was required to pay under the award – employee establishes that he was covered by the award and the company had failed to make payments to the employee it was required to make under the award but employee fails to establish that the sole director was involved in the company’s failure to comply with the award – application dismissed.

INDUSTRIAL LAW – ex tempore ruling – application made on eve of trial - whether leave should be granted for respondent to file further affidavit material – consideration of the Federal Circuit and Family Court of Australia’s case management principles – whether there would be non-compensable loss if application is granted - application dismissed

INTELLECTUAL PROPERTY  –  Practice and procedure – application for discovery by way of categories of documents – not appropriate to make discovery by such means – whether appropriate in the interests of the administration of justice to allow for discovery by way of disclosure provided for by r 14.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) – appropriate to order disclosure in relation to particular issues arising on the pleadings.

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). 

MIGRATION LAW – PRACTICE AND PROCEDURE – interlocutory application for transfer to the Federal Court of Australia – where applicant seeks transfer in order to challenge adverse assessment by ASIO – transfer application opposed by Minister – whether the transfer is in the interests of the administration of justice – where this court has no jurisdiction to hear the challenge to the ASIO assessment – transfer order made

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to r 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the inclusion of a non-operational email address in the delegate’s notification letter rendered the notification letter defective – whether the applicant was properly notified of the delegate’s decision as per the principles in Sandor v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 434 – whether the Tribunal failed to consider the applicant’s explanation for the delay in lodging her review application – whether the Tribunal should have invited the applicant to attend a hearing before it as required by s 425(1) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

MIGRATION – student visa – decision of the Administrative Appeals Tribunal - whether the applicant could satisfy the genuine temporary entrant criterion under cl 500.212(a) of  Schedule 2 to the Migration Regulations 1994 (Cth) – consideration of factors in Ministerial Direction 69 – consideration of the applicant’s study history in Australia and his home country – consideration of the applicant’s circumstances in Australia and his home country - no jurisdictional error – application dismissed with costs 

MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA constructively failed to exercise its jurisdiction by failing to consider and determine a claim – application dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – allegation of agent misconduct and/or fraud on the Tribunal raised at first hearing before this Court – evidence filed by the applicant in relation to the agent’s conduct – pro bono referral certificate issued by the Court (and accepted by pro bono counsel) – application ultimately discontinued and costs awarded. 

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – related application for an interlocutory injunction preventing removal of the applicant from Australia – arguable case that s 425 of the Migration Act 1958 (Cth) was breached – time extended – injunction granted

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).   

MIGRATION – administrative law – judicial review – visitor visa – discontinued by consent

MIGRATION – Administrative Appeals Tribunal – student visa (subclass 572) refusal – Genuine Temporary Entrant Criteria cl 500.212(a) Sch 2 – whether Tribunal decision was affected by error of law, procedural fairness and jurisdictional error – whether the Tribunal unduly relied on Ministerial Direction No. 69 – whether the Tribunal failed to provide a warning about the potential refusal of the student visa – application dismissed.

MIGRATION – Extension of time application – Student visa – grounds of procedural fairness – whether Tribunal considered adverse information before it – application granted

CONSUMER LAW – COSTS – indemnity costs sought by respondents – costs awarded in accordance with Part 1 of Schedule 2 of the Rules – cross-claimants entitlement to interest pursuant to Contract of Sale – claim made for agent’s commission on resale – STAY – stay granted.

MIGRATION – application for an extension of time in which to seek judicial review of a decision of the Administrative Appeals Tribunal – relevant considerations – extension of time refused

MIGRATION – student (subclass 500) visa – visa cancelled – breach of condition 8202(2)(a) of Schedule 8 of the Migration Regulations 1994 - decision of the Administrative Appeals Tribunal to affirm delegate’s decision – judicial review – whether Tribunal denied the applicant procedural fairness – whether Tribunal failed to consider applicant’s genuine reasons and circumstances – Tribunal’s decision not affected  by jurisdictional error – application for judicial review dismissed

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether denial of adjournment unreasonable – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error established – application dismissed.

INDUSTRIAL LAW – FAIR WORK – applicant seeks penalties and costs – contraventions of ss 502 and 503(1) of the Fair Work Act 2009 (Cth) found by liability judge – single course of conduct – contraveners responsible for right of entry – lack of contrition – penalties imposed – declarations appropriate – not unreasonable to reject offer - no order as to costs

INDUSTRIAL LAW – practice and procedure – application for leave to file an amended points of claim – whether the proposed amended points of claim states a case based on contravention of s 62 of the Fair Work Act 2009 (Cth) – whether the proposed amended points of claim is sufficiently particularised – whether the applicant has provided all particulars she is capable of providing in support of the proposed amended points of claim – proposed amended points of claim states arguable case assuming it has stated all necessary material facts and particulars – applicant has not, however, shown she has alleged all material facts provided all particulars of which she is capable of making or providing – application for leave to file amended points of claim refused.

FAIR WORK – failure to comply with Compliance Notice – accessorial liability of business owner – penalties – order permitting portion of penalty paid by primary contravenor to be remitted to former employee

MIGRATION – whether time ought to be extended in respect of an application for review of a summary dismissal decision made by a Registrar – relevant considerations – where the substantive application had no reasonable prospect of success – application dismissed

MIGRATION— Judicial Review – student visa (Subclass 500) – citizen of India – matter listed for extension of time hearing—dismissal of adjournment application – dismissal of extension of time application

MIGRATION – Visitor (Tourist) (Class FA) (subclass 600) visa –– Administrative Appeals Tribunal –– judicial review –– no jurisdictional error –– futility –– application dismissed.

MIGRATION – Student (Temporary) (Class TU) visa– Administrative Appeals Tribunal –– judicial review – whether the Tribunal fell into jurisdictional error –– no jurisdictional error –– application dismissed.

BANKRUPTCY – sequestration order annulled

FAIR WORK - alleged contraventions of general protections provisions of the Fair Work Act 2009 (Cth) – circumstances of global COVID-19 pandemic and State Government-introduced public health directions and orders – where Applicant was a registered nurse in residential aged care facility of the Respondent – directed to produce evidence of COVID-19 vaccination or authorised medical exemption – took long service leave and continued to assess whether to take the vaccine – ultimately dismissed by reason of inability to perform inherent requirements of the role on capacity grounds – where not established that adverse action was taken for a prohibited reason – where not established that action was taken or threatened with intent to coerce – application is dismissed.

FAIR WORK – alleged contraventions of general protections provisions of the Fair Work Act 2009 (Cth) – circumstances of global COVID-19 pandemic and State Government-introduced public health directions and orders – where Applicant was a registered nurse in acute ward administering urgent care to patients of the Respondent – directed to produce evidence of COVID-19 vaccination or authorised medical exemption – not rostered and took leave pending compliance with direction – dismissed by reason of inability to perform inherent requirements of the role on capacity grounds – where not established that adverse action was taken for a prohibited reason – where not established that action was taken or threatened with intent to coerce – application is dismissed.

MIGRATION – Judicial review – application for an extension of time – dismissal for non-appearance

MIGRATION – Extension of time application – Student visa – grounds of procedural fairness – whether AAT’s written reasons reflect oral reasons provided at hearing

MIGRATION – protection visa, protection visa refused, judicial review application – Judicial Registrar dismissed applicant for non-attendance – application to reinstate judicial review application refused – application to review Registrar’s decision – whether reasonable excuse for the non-attendance – whether any prejudice to Minister – whether applicant has a reasonably arguable prospect of success on the substantive application – application for review of Registrar’s decision refusing reinstatement dismissed.

MIGRATION – application for judicial review – student visa – review of a decision by the Administrative Appeals Tribunal (Tribunal) – whether the Tribunal correctly particularised its statutory task – whether the Tribunal ignored relevant facts – whether the Tribunal afforded procedural fairness – no jurisdictional error - application dismissed.

MIGRATION – Subclass 457 (Temporary Work (Skilled)) visa – decision of Administrative Appeals Tribunal – Tribunal affirming decision of delegate to cancel the primary visa holder’s visa - whether the primary visa holder worked in an associated entity of the approved sponsor and outside of their approved nomination – whether jurisdictional error established – application dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of an application for an extension of time – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

BANKRUPTCY – interest vested in trustee – delay in registration – trustee entitled to realise the property

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – Judicial Review – Protection Visa - Procedural fairness – Impermissible merits review – Where applicant self-represented – claim of threat to life by father-in-law – application is dismissed

MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – matter listed for a hearing of the application for an extension of time – no appearance by or on behalf of the applicant – application dismissed for non-appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

MIGRATION – non-appearance by the applicant at the scheduled hearing – evidence indicates that the applicant is offshore – where the applicant did not seek any alternative means of attending the hearing but simply did not attend the scheduled listing – application dismissed for non-appearance

INDUSTRIAL LAW  – Fair Work – where applicant dismissed from employment following lengthy absence due to workplace injury – where applicant employed in specialist nurse practitioner role – where applicant alleged dismissal adverse action was taken because she exercised workplace rights within the meaning of s 341 of the Fair Work Act 2009 (Cth) – identification of decision makers – where not all decision makers gave direct testimony – whether respondent able to discharge statutory reverse onus – finding that respondent contravened s 340(1) of the Fair Work Act – whether respondent breached obligations under the applicable Enterprise Agreement – whether respondent failed to assist the applicant to remain at work or return to work in suitable employment – no breach of Enterprise Agreement established – matter adjourned for hearing on penalty and relief

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal – whether the Tribunal failed to act according to substantial justice and the merits of the case – whether the Tribunal failed to consider the applicant’s enrolment and work towards completing a degree – whether the Tribunal wrongly speculated the applicant had a strong financial incentive to stay in Australia – whether the Tribunal incorrectly identified the applicant’s home country – whether the Tribunal failed to act in accordance with the immigration laws of Australia – whether the Tribunal’s finding was illogical or irrational – no jurisdictional error – application dismissed.

MIGRATION – Application for judicial review – Citizen of Afghanistan – Excluded fast track applicant – Where the Delegate found the applicant submitted a bogus identity document in support of visa application – Denial of procedural fairness – Legal unreasonableness –– Opportunity to comment on document in meaningful or effective way– Particulars of why document was considered to be bogus – Practical injustice – Minister concedes error in matters referred to applicant for comment – Is this jurisdictional error – Or can it be characterised as technical error – Is any failure to provide comment jurisdictional error leading to relevant decision being vitiated – Materiality – Conflict of authority – Minister submits discretion not to grant constitutional writs should be granted – Matters to be considered – Application dismissed

MIGRATION LAW – application for judicial review –applicant’s subclass 050 (Bridging (General)) visa – cancellation of visa under section 116(1)(g) of the Migration Act 1958 (Cth) – review of delegate’s decision to cancel visa by the Administrative Appeals Tribunal – whether Tribunal made an error in considering the applicant’s criminal convictions – whether the Tribunal failed to consider the applicant’s evidence – whether the Tribunal erroneously applied Direction 63 – where Tribunal considered it appropriate to rely on the convictions and sentencing – applicant seeking impermissible merits review – application dismissed

MIGRATION – judicial review – jurisdictional error – denial of procedural fairness – alleged bias – allegation as to difficulty understanding and communicating with Tribunal member on telephone where interpreter involved

INDUSTRIAL LAW – SMALL CLAIMS – Application for interest up to the payment of accident make-up pay – Application filed out of time – Consideration of limitation periods – Application dismissed

MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – whether the Tribunal failed to give the applicant adequate notice of, and a sufficient opportunity to address, a critical issue in the review – whether the Tribunal asked itself the wrong question or misconstrued the statutory requirements – whether the Tribunal acted unreasonably in refusing the applicant’s request for an adjournment – no jurisdictional error – application dismissed.

MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal ignored relevant facts and relied on irrelevant facts – whether the Tribunal did not give “due and proper” consideration to information – whether the Tribunal placed “the wrong emphasis on matters” – whether the Tribunal made an incorrect inference – whether there was any evidence to substantiate the Tribunal’s findings – whether the Tribunal misconstrued or failed to consider all of the legislative requirements set out in cl 500.212 in Schedule 2 of the Migration Regulations 1994 (Cth) – whether the Tribunal’s decision “goes against the interest of justice” – whether the Tribunal failed to give adequate weight to particular facts or evidence – whether the Tribunal failed to consider the impact of COVID-19 – no jurisdictional error – application dismissed.